Two undocumented workers successfully asserted that the United States violated the right to non-discrimination by failing to protect their labor rights assured under the American Declaration of the Rights and Duties of Man. The IACHR recommended that there be no distinctions in employment and labor rights and remedies based on immigration status and work authorization, once a person commences work as an employee.
Leopoldo Zumaya and Francisco Berumen Lizalde were both injured on the job while working without work authorization in the United States. Each sustained long-term physical damage and were denied access to compensation solely because of their immigration status. Mr. Zumaya filed a workers’ compensation claim but had to settle for a fraction of what he would have received if he had been a U.S. legal permanent resident or citizen. Mr. Lizalde was arrested and deported to Mexico – seemingly in direct response to his workers’ compensation claim – and therefore was unable to pursue it.
A petition was submitted on their behalf with the Inter-American Commission on Human Rights (Commission), alleging violations of various articles of the American Declaration of the Rights and Duties of Man (American Declaration). In particular, they argued that discrimination on the basis of immigration status stems from the U.S. Supreme Court decision Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) – which had held that undocumented workers fired for union activities were unable to receive back pay as a remedy – and that Hoffman has been wrongly extended by U.S. state-level courts to deny protections to undocumented workers in other contexts, including access to injury compensation, freedom from discrimination, and employer liability for workplace injury, with a further consequence being the intimidation of undocumented workers to discourage use of the judicial system.
The Commission found the U.S. in violation of rights in Articles II (equality before the law) and XVI (social security) for both men. Further, it found violations of Articles XVII (recognition of judicial personality and civil rights) and XVIII (fair trial) for Mr. Lizalde. In relation to Article II, it examined the meaning of “discrimination” under human rights documents including the American Declaration, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, as set forth by the Inter-American Court on Human Rights in its Advisory Opinion OC-18, addressing the Juridical Rights of Undocumented Workers. Whilst acknowledging that States are not obligated to provide access to employment to undocumented persons, the Commission considered it mandatory that once an employment relationship begins, the legal protections afforded to workers apply regardless of documented status. The Commission noted precedent in several U.S. states that endorse the distinction between documented and undocumented workers in terms of remedies to which those workers are entitled at least partially due to Hoffman. In this context , the Commission found that the U.S. failed to afford equal protection to all workers.
Discussing the right to social security, the Commission noted that the Charter of the Organization of American States (OAS Charter) and various other international law sources require systems which include compensation for workplace injuries and income while a worker is unable to support himself or herself. The Commission considered the workers’ compensation programs existing in the U.S. to fall within the scope of ‘social security’ as they seek to provide protections to workers during vulnerable times, but found that neither petitioner was able to access the full benefits of such programs.
The Commission also found that the U.S. violated Articles XVII and XVIII of the American Declaration with respect to Mr. Lizalde, due to the prosecution, detention and subsequent deportation initiated in seeming response to his workers’ compensation claim. The Commission considered the right to work to be one of the “civil rights” enjoyed under Article XVII, and held that a failure to provide proper remedy for workplace violations deprives workers both of the “proper conditions” owed them under the OAS Charter, and recognition of their injury under the law. Article XVIII guarantees equal access to the courts when fundamental rights are violated. While States should provide an accessible, effective legal framework to protect workers’ rights, neither petitioner had access to a full and fair hearing. The Commission found that the hurdles experienced by undocumented workers in the U.S. when they try to claim rights allow them to be exploited and discriminated against with little protection. The Commission observed that a workers’ compensation claim was not sufficient to suspend deportation, decreasing the likelihood that claims from undocumented workers will be adequately examined.
The Commission recommended that the U.S.: provide monetary compensation; ensure all federal and state laws and policies, on their face and in practice, prohibit any and all distinctions in employment and labor rights based on immigration status and work authorization, once a person commences work as an employee; prohibit employer inquiries into the immigration status of a worker asserting his or her employment and labor rights in litigation or in administration complaints; ensure that undocumented workers are granted the same rights and remedies for violations of their rights in the workplace as documented workers; establish a procedure whereby undocumented workers involved in workers’ compensation proceedings, or their representatives, may request the suspension of their deportations until the resolution of the proceedings and the workers have received the appropriate medical treatment ordered by the presiding courts; and improve and enhance the detection of employers who violate labor rights and exploit undocumented workers and impose adequate sanctions against them.
Enforcement of Commission recommendations has historically been challenging, particularly where subnational governments and legal systems may be implicated, largely – according to the U.S. government – because of the U.S.’s federalist system of governance, and deference to the states in how they enforce their laws, as well as the U.S.’s limited record on treaty ratification. Nonetheless, the decision is a further recognition of the right to non-discrimination and equality, applicable to all levels of government in all States. While the petitioners’ counsel is not optimistic that their clients will receive financial compensation, advocates now have an additional precedent confirming that all workers, regardless of immigration status, are entitled to their full rights and remedies under the law once they have entered into an employment relationship. (Professor Sarah Paoletti, Director, Transnational Legal Clinic, University of Pennsylvania Law School, email interview, February 15, 2017)
This landmark decision, which affirms that labor rights are also human rights (para.119), is the first to address the employment rights of undocumented migrants in the Americas.
According to Professor Paoletti, the case serves as an important marker of recognized norms of human rights as applied to undocumented workers, and explicitly recognizes that international law requires undocumented workers be treated as equal to their citizen counterparts in their enjoyment of all rights and full remedies where there is a breach of their rights. The American Civil Liberties Union has commented that this case has the “potential to impact the lives of millions of undocumented workers who have been living in the shadows while contributing to our economy and society.”
The petition was filed by the American Civil Liberties Union, the National Employment Law Project, and the Transnational Legal Clinic of the University of Pennsylvania Law School. In addition, the following organizations participated in the filing of the original petition: AFL-CIO, Inter-Faith Justice Network, United Mineworkers, and 6 individual petitioners.
